Employee’s Failure to Include Discrimination Lawsuit Against Employer in Bankruptcy Schedules Results in Dismissal of Action

An employee of the United States Army alleged that certain adverse employment actions by the Secretary of the Army resulted from discrimination. She filed for Chapter 7 bankruptcy protection, but failed to list the discrimination action as an asset on her bankruptcy schedules. Only when the employer moved to dismiss the action on the ground of judicial estoppel did the employee amend her bankruptcy schedules to add this potential asset. The district court found that judicial estoppel barred her action in that there was no evidence to suggest that her original failure to list the discrimination case as an asset was inadvertent or mistaken. Her case was accordingly dismissed.

The employee appealed, and the Ninth Circuit Court of Appeals affirmed, finding that, in light of the timing of the employee's amendment of her bankruptcy schedules and her choice not to file a declaration explaining her initial error, no reasonable fact-finder could conclude that the omission was inadvertent or mistaken. More ›

Employee Successfully Defeats Employer’s Summary Judgment on Quid Pro Quo Claim

In this case, the employee secured her position with the employer through the assistance of a friend's husband, and after she was hired, the man became her supervisor. After she was hired, she claimed he started to sexually harass her. Specifically, she claimed that he put his arms around her shoulders and kissed the side of her face; put his arm around her shoulders on another occasion; and that he asked her to remove a hair from his chin with tweezers and kissed her. On each occasion, she claimed she was uncomfortable and tried to refuse, but he repeatedly told her not to complain and that he could get her fired. The employee complained to her supervisor's supervisor, who said she would be in touch to discuss further, but no such communications took place. Thereafter, the supervisor and a manager expressed concern about the employee's job performance, appearance, and tardiness. The supervisor's supervisor directed them to terminate the employee's employment. More ›

Employee’s Dishonesty Outweighs Employee’s Complaints of Harassment in Termination/Retaliation Suit

A hospital employee was terminated for dishonesty and causing a workplace disruption. She had previously posted comments on her Facebook page alleging that her supervising physician inappropriately touched her and was paying employees for time they did not work. The accused physician saw the posts and notified hospital management. The employee was asked about the posts, and three times denied that she had authored the posts. The hospital investigated the allegations, including the allegations concerning the touchings by the supervisor, and during this time, the employee told her co-workers that she believed the physician had destroyed evidence of the extra pay he had given to the employees. Later, the employee admitted that she had, in fact, authored the Facebook posts and was terminated for dishonesty and causing a workplace disruption. More ›

Court Holds that Job-Related Evaluation Consistent with Business Necessity does not Violate ADA

In a case where the defendant construction company was represented by Hinshaw & Culbertson LLP, the U.S. District Court for the Northern District of Illinois recently ruled that the employer company did not violate the Americans with Disabilities Act (ADA) when it rescinded a conditional job offer to an employee who failed its job-related evaluation. The Court based its decision on the ADA regulations, which provide that an employer can defend against a discrimination claim by showing that standards, tests, or selection criteria that screen out or tend to screen out or otherwise deny a job or benefit to an individual with a disability are job-related and consistent with business necessity. In the alternative, the ADA permits an employer to conduct post-offer examinations as long as it does so for all individuals entering the same job category.

In this case, the company implemented a policy requiring that all persons applying for field positions in Illinois successfully complete a functional capacity employment test. In June 2010, the company extended a conditional offer of employment to the plaintiff carpenter whom it previously laid off for economic reasons. The offer, however, was contingent upon successful completion of the evaluation, which ultimately revealed that the carpenter was unable to meet the company's minimum lifting requirements. The company then rescinded his conditional offer because the carpenter could not perform the essential functions of the job.

The Court ruled that the post-job offer exception to the ADA's medical test prohibition applied. Even if the evaluation was not required for each employee, it properly analyzed tasks that were representative of those performed by the carpenters and contributed to the company's efforts to maintain a safe workplace.

This decision serves as a reminder to employers that post-offer examinations must be applied to all individuals entering the same position or must be job-related and consistent with business necessity. If you would like more information read Chi. Reg'l Council of Carpenters v. Berglund Constr. Co., No. 12 C 3604 (N.D. Ill. Dec. 19, 2013).

Ninth Circuit: Police Officer’s Complaints Regarding Safety Matters are not Protected Speech

In this case, a police officer was removed from his position on the K-9 team after it was determined that he, as well as other officers on the team, had serious performance issues that posed a significant risk to team safety. The officer then brought suit against his employer and various other officers alleging that that he was deprived of his constitutional rights in that he was retaliated against for exercising his free speech rights under the First Amendment. Essentially, the officer claimed that he was terminated because he voiced various concerns about the K-9 team's ongoing safety problems and the accidental discharge of weapons. The matter was tried to a jury, who found unanimously that the officer was retaliated against. The employer moved for a judgment as a matter of law, which was denied. The employer appealed. More ›

Obama Administration Bends Individual Mandate Rules

With the deadline to select health coverage just days away, the Obama administration has given an early Christmas present to individuals whose policies were cancelled because of the Affordable Care Act (“ACA”).

Those individuals will be temporarily “exempted” from the ACA’s individual mandate, according to a bulletin issued late Thursday from the Department of Health and Human Services. The rule change was spearheaded by a group of Democratic senators, many of whom face tough re-elections battles next year. More ›

Second Circuit: Parent Company has Liability for Subsidiary’s WARN Violations

The Worker Adjustment Retraining and Notification Act ("WARN") requires employers with 100 or more employees to provide 60 calendar days' notice of plant closings or mass layoffs to give transition time to workers and their families to adjust to the prospective loss of employment, seek alternative jobs, and/or enter skill training or retraining to successfully compete in the job market. 29 U.S.C. §2201 et seq. Employers who fail to comply with WARN are liable to affected employees for up to 60 days of pay and benefits. 29 U.S.C. §2104(a)(1).

In this case, the employee was laid off by the employer and filed a class action alleging that the employer and its parent company and other related ownership entities violated WARN. Specifically, the employee claimed that the parent was liable for the employer's WARN violations because the parent company disregarded the employer's corporate form and exercised de facto control of the employer. As it turns out, the parent company was the sole member and manager of the employer, and the parent company's board operated as the employer's board.

The Second Circuit reversed summary judgment in favor of the parent company, finding that a triable issue of fact existed that would allow a jury to conclude that the employer was so controlled by the parent that the employer lacked the ability to make any decisions independently and that a parent company resolution authorizing the employer to layoff this employee and the class of similar employees was a function of being an employer and created liability. Adopting Department of Labor regulations to determine if separate entities are a single employer, the court considered whether there was (1) common ownership; (2) common directors and/or officers; (3) de facto exercise of control; (4) unity of personnel policies emanating from a common source; and (5) dependency of operations. The Second Circuit observed that the inquiry is a fact-specific balancing test, no one factor controls, and all factors need to be present for liability to attach to the related entity. Significantly, a separate legal existence will not insulate a parent company from liability for a subsidiary's WARN violations if the parent is the decision-maker responsible for the employment practice giving rise to the litigation.

If you have questions about Guippone v. BH S&B Holdings, LLC et al., No. 12-183 (2^nd Cir. December 10, 2013), please contact David I. Dalby.

California Restaurant Managers get Second Chance at Class Action

In Martinez v. Joe’s Crab Shack Holdings, the California Court of Appeal for the Second Appellate District reversed an order denying class certification to a group of managerial restaurant employees allegedly misclassified as exempt.

The case was brought by lower-level managers at Joe’s Crab Shack restaurants throughout California who complained that they performed many of the same tasks as hourly employees but did not qualify for overtime pay due to their managerial status. More ›

California Restaurant Managers get Second Chance at Class Action

In Horne v. International Union of Painters and Allied Trades District Counsel, 16, Plaintiff Raymond Horne, an African American male, applied for organizer positions within the union of which he was a member on two occasions.  Defendant union hired white males in each case, and Horne sued the union, alleging that he had not been hired due to racial discrimination, in violation of Government Code section 12940, subd. (a) of the Fair Employment and Housing Act (“FEHA”). More ›

NLRB: Unions can Picket on Private Walkways in California

After a grocery store opened a warehouse grocery store under a different name in Sacramento, California, the store became a target for union picketing. The United Food and Commercial Workers Union Local 8 began picketing the store because the workers were not represented by a union and did not have a collective bargaining agreement. The Union agents held signs and distributed fliers in front of the store’s entrance and walkways, but did not impede customer access to the store. The grocery store contacted the Sacramento Police Department to remove the Union agents, but the police declined to do so without a court order. More ›